The applicant, Mr Müslüm Gündüz, is a Turkish
national who was born in 1941 and lives in Elaziğ. He was represented
before the Court by Mr A. Çiftçi, a lawyer practising in Ankara.

A. The circumstances of the case

The facts of the case, as submitted by the applicant,
may be summarised as follows.

A report about the applicant, the leader of Tarikat
Aczmendi (a community describing itself as an Islamic sect), entitled
“They came with bombs, they will leave with bombs” (“Bombayla geldiler, bombayla gidecekler”) was published in
the 17 and 24 June 1994 issues of Haftalık Taraf (“Weekly Viewpoint”), a weekly newspaper
with radical Islamic leanings.

On 9 November 1994 the public prosecutor at the
Fatih Criminal Court charged the applicant with incitement to commit
an offence, within the meaning of Article 311 § 2 of the Criminal Code,
and with insulting the memory of Atatürk, under Law no. 5816, which
protects the memory of Atatürk.

In a judgment of 19 January 1998, the Criminal
Court acquitted the applicant of insulting the memory of Atatürk, holding
that his comments on Kemalism in the report in question amounted to
criticism that could not be treated as an insult to the memory of Atatürk.

However, it sentenced him to four years' imprisonment
for incitement to commit an offence. In support of that decision, it
cited the following comments by the applicant that had appeared in the
report:

“These people [moderate Islamic intellectuals]
have no strength left ... Now they have come up with I.N. [an Islamic
intellectual known for his moderate views]... Allah has blocked their
water supply ... Only a fraction of Muslims, among those not engaged
in the struggle, regard I.N. as someone important ... Now their teeth
and nails have been ripped out, their hair has fallen out, they have
been dethroned. They are still trying, but in vain, to preserve their
greatness and, in doing so, provide a rather comic image of a monster
... like a hollow statue ... which, as soon as it is touched or set
in motion (in the event of an attack), will show that it no longer has
the strength to do anything ... Indeed, this has already been seen ...
All that is needed now is for one brave man among the Muslims to plant
a dagger in their soft underbelly and run them through twice with a
bayonet to show just how empty they are. They no longer have anything
else to sustain them. There is nothing else left ...”

The court held that the applicant's statement
“All that is needed now is for one brave man among the Muslims to
plant a dagger in their soft underbelly and run them through twice with
a bayonet to show just how empty they are ... There is nothing else
left ...” in the account of his opinions about I.N. amounted to public
incitement to commit an offence. It considered that in the instant case
the right to impart information and to engage in criticism could not
be relied on and that publication of the statements in question had
not served any public interest. In conclusion, it held that the legal
rules governing the exercise of the right to impart information had
not been complied with.

The applicant, submitting that his conviction
had infringed his freedom of thought and expression, appealed on points
of law on 24 April 1998.

On 29 December 1998 the Court of Cassation dismissed
his appeal and upheld the judgment at first instance.

In the meantime, on 20 May 1997, the Istanbul
National Security Court had sentenced the applicant to two years' imprisonment
and a fine of 520,000 Turkish liras, holding that the comments made by
him in the report in question (reference was made to other passages
in the report, in which he had asserted that secularists and Kemalists
were infidels and enemies of Islam and should do penance to save their
lives) amounted to incitement to religious hatred. That decision was
upheld by the Court of Cassation on 4 February 1998.

B. Relevant domestic law

Article 311 § 2 of the Criminal Code provides:

“Public incitement to commit an offence

Anyone who publicly incites another to commit
an offence shall be liable:

(1) ...

(2) to a penalty of between three months and three
years' imprisonment, depending on the nature of the offence and the
sentence it carries, whether long-term imprisonment or a shorter custodial
sentence ...

Where incitement to commit an offence is done
by means of mass communication, of whatever type – tape recordings,
gramophone records, newspapers, press publications or other published
material – by the circulation or distribution of printed papers or
by the placing of placards or posters in public places, the terms of
imprisonment to which convicted persons are liable shall be doubled
...”

Under the criminal law, while the ordinary criminal
courts have jurisdiction in cases concerning public incitement to commit
an offence, within the meaning of Article 311 of the Criminal Code,
only the national security courts have jurisdiction to try the offences
referred to in Article 312 of the Criminal Code, which prohibits incitement
to religious hatred.

The relevant part of section 19(1) of the Execution
of Sentences Act (Law no. 647 of 13 July 1965) provides:

“... persons who ... have been ordered to serve
a custodial sentence shall be granted automatic parole when they have
served half of their sentence, provided they have been of good conduct
...”

COMPLAINTS

1. The applicant considered that his conviction
on 19 January 1998 by the Fatih Criminal Court on account of statements
made during an interview reported in the press had infringed his right
to freedom of religion and freedom of expression under Articles 9 and
10 of the Convention, taken separately or in conjunction with Article
14.

...

THE LAW

1. The applicant submitted, firstly, that his
conviction on 19 January 1998 by the Fatih Criminal Court on account
of statements made during an interview reported in the press had infringed
his right to freedom of religion and to freedom of expression under
Articles 9 and 10 of the Convention, taken separately or in conjunction
with Article 14.

The Court, which cannot see any grounds for a
separate examination of the complaints under Articles 9 and 14 of the
Convention, will examine the complaint under Article 10, the relevant
parts of which provide:

“1. Everyone has the right to freedom of expression.
This right shall include freedom to hold opinions and to receive and
impart information and ideas without interference by public authority
and regardless of frontiers. ...

2. The exercise of these freedoms, since it carries
with it duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law and are
necessary in a democratic society, in the interests of national security,
territorial integrity or public safety, for the prevention of disorder
or crime, for the protection of health or morals, for the protection
of the reputation or rights of others, for preventing the disclosure
of information received in confidence, or for maintaining the authority
and impartiality of the judiciary.”

The Court considers that the applicant's conviction
amounted to “interference” with his freedom of expression. Such
interference will constitute a breach of Article 10 unless it was “prescribed
by law”, pursued one or more of the legitimate aims referred to in
paragraph 2 and was “necessary in a democratic society” in order
to achieve the aim or aims in question.

The Court observes that the impugned measure
was “prescribed by law”, having been based on Article 311 § 2 of
the Criminal Code. In addition, the interference pursued at least one
of the legitimate aims referred to in Article 10 § 2, namely the prevention
of crime.

It remains to be determined whether the measure
was “necessary in a democratic society”. In this connection, the
Court reiterates the essential role played by the press in such a society
(see Goodwin
v. the United Kingdom, judgment of 27 March 1996, Reports of Judgments and Decisions 1996-II, p. 500, § 39, and
Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 59, ECHR 1999-III).
Although its duty is to impart – in a manner consistent with its obligations
and responsibilities – information and ideas on all matters of public
interest, it must not overstep certain bounds, in particular in respect
of the reputation and rights of others (see Thoma v. Luxembourg, no. 38432/97, § 45, ECHR 2001-III; Jersild v. Denmark,
judgment of 23 September 1994, Series A no. 298, pp. 23-24, § 31; and De Haes and
Gijsels v. Belgium, judgment of 24 February 1997, Reports 1997-I, pp. 233-34, § 37). Although journalistic freedom
also covers possible recourse to a degree of exaggeration, or even provocation
(see Prager
and Oberschlick v. Austria, judgment of 26 April 1995, Series
A no. 313, p. 19, § 38), it is subject to the proviso that the journalists
in question are acting in good faith in order to provide accurate and
reliable information in accordance with the ethics of journalism (see
Bladet Tromsø and Stensaas, cited above, § 65, and Fressoz and Roire v. France [GC], no. 29183/95, § 54, ECHR
1999-I). However, where the remarks in question incite others to violence
against an individual or a public official or a sector of the population,
the State authorities enjoy a wider margin of appreciation when examining
the need for interference with freedom of expression (see Sürek v. Turkey(no. 1) [GC], no. 26682/95, § 62, ECHR 1999-IV).

In the instant case, the Court emphasises the
content and tone of the applicant's comments, which were intended to
stigmatise “moderate Islamic intellectuals”, particularly in the
following passage: “their ... nails have been ripped out, their hair
has fallen out, they have been dethroned.” The applicant also stated:
“All that is needed now is for one brave man among the Muslims to
plant a dagger in their soft underbelly and run them through twice with
a bayonet to show just how empty they are.”

Admittedly, such comments could have been construed
as metaphor, but they could also have had another meaning. It should
be noted here that in the report in issue the applicant gave the name
of one of the persons he was alluding to, I.N. As this person was a
writer enjoying a certain amount of fame, he was easily recognisable
by the general public and, following publication of the article, was
therefore indisputably exposed to a significant risk of physical violence.
In this context, the Court considers that the reasons given by the authorities
for the applicant's conviction, with their emphasis on the danger that
I.N. faced, are both relevant and sufficient to justify the impugned
interference with the applicant's right to freedom of expression. The
Court reiterates that the mere fact that “information” or “ideas”
may offend, shock or disturb does not suffice to justify such interference,
since what is in issue in the instant case is hate speech glorifying
violence (see Sürek (no. 1), cited above, § 62).

The Court must also stress that statements which
may be held to amount to hate speech or to glorification of or incitement
to violence, such as those made in the instant case, cannot be regarded
as compatible with the notion of tolerance and run counter to the fundamental
values of justice and peace set forth in the Preamble to the Convention.
Admittedly, the Court acknowledges the severity of the applicant's sentence,
which was increased because the offence had been committed by means
of mass communication. It considers, however, that provision for deterrent
penalties in domestic law may be necessary where conduct reaches the
level observed in the instant case and becomes intolerable in that it
negates the founding principles of a pluralist democracy. Furthermore,
having regard, in particular, to the fact that, pursuant to section
19(1) of the Execution of Sentences Act (Law no. 647), the applicant
will automatically be entitled to parole after serving half of his sentence,
the Court considers that the severity of the penalty imposed in the
instant case cannot be regarded as disproportionate to the legitimate
aim pursued, namely the prevention of public incitement to commit offences.

The interference in question was therefore compatible
with Article 10 § 2 of the Convention. It follows that this complaint
must be dismissed as being manifestly ill-founded, pursuant to Article
35 §§ 3 and 4 of the Convention.